Aure v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 1; N1031 (3 February 1992)

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WOODS J: The Plaf is claiming as thas the widow of one Aure Alai who was killed in a motor vehicle accident on 20th June 1988 when he was a passenger on a motor vehicle registered No AEX 616 driven by Konia Kamore which rolled backwards off the Kundiawa - Gumine road in the Simbu Province and overturned over a cliff into a river.

The Plaintiff is claiming on behalf of herself and her two children and alleges that her husband was killed through the negligence of the driver of the motor vehicle. The claim is brought against the Trust as the insurer of the motor vehicle and the Trust is denying liability.

The Plaintiff brought witnesses who gave the following evidence. Sergeant John Warren gave evidence that he was the officer in charge of the traffic section at Kundiawa Police Station and after reporting for duty on 21st June 1988 he was informed of a motor vehicle accident that had occurred the previous evening on the Gumine Road. He went to the scene where the vehicle was lying in the river where it had come to rest after the accident. He assisted in the search of the bodies of the people who had been killed and one of the deceased was identified to him as being Aure Alai. The Sergeant prepared the usual Road Accident Report and noted that the accident had happened as the vehicle was being driven up a steep rise. A witness Morua Bomal gave evidence of being a passenger on the subject vehicle and says that she and the deceased and others were on the utility when it stalled going up a steep hill and then ran backwards and whilst she was able to jump off in time a number of people ended up with the vehicle in the river.

A witness Morowa Robert gave evidence that he saw the deceased get onto the vehicle and then later he heard about the accident and went to the scene and saw the body of the deceased and helped to recover it. He recalls having seen the vehicle involved before and knew the driver and had seen him drive the vehicle before.

The driver Konia Kamore gave evidence about being the driver of the vehicle but to only having a learner permit. He says that when the vehicle stalled he tried to drive the vehicle but the drive disengaged and the vehicle rolled backwards into the river and there was nothing he could do. There is a suggestion in his evidence that there may have been a mechanical defect to make the drive disengage but there is no technical evidence to suggest a mechanical defect.

The driver said he only had a learner permit although as far as the police were concerned he was unlicensed. There is no evidence to suggest that the deceased knew the driver was not properly licensed to drive a vehicle with passengers rather some of the witnesses say that they had seen him driving around for some time. I note here that the driver appeared to be well educated and gave his evidence in English in Court. So his confident and educated manner may have led people to think that he was properly licensed and fit to drive a vehicle.

In the circumstances I am satisfied that the driver had fallen below the standard of care applicable in the circumstances and by his failures he caused the accident and thereby caused the death of the deceased. I am not satisfied there is any contributory negligence in the deceased. I find the Trust liable in damages for the death of Aure Alai.

The deceased was a villager aged in his early 30s with no regular salary income apart from attendance payments as a village court magistrate and therefore relied mainly on his own efforts in the village situation. He and his wife had vegetable gardens and coffee. Whilst both husband and wife would have worked together in these rural and subsistence activities the widow’s activities will now be scaled down. Whilst some figures are mentioned as the moneys earned in these activities they are not clearly defined as being net or gross or over what period they were obtained. I must therefore assess the deceased’s contributions to the family in a village subsistence economy where there are no exact figures to work from. The widow says they are married about 14 years, they had 2 children who I assess are now aged almost 14 years and 8 years now.

A District Manager came and gave evidence of the age of the deceased at about 33 years at the time of his death and the wife would have been about 3 years younger than the husband. I will therefore find that the deceased was aged 33 years at the time of his death and will allow for a dependency of 22 years for the widow. I will allow for a figure of K6 per week for the widow and K5 per week for each of the 2 children until they attain the age of 16 years.

On contingencies as the widow is now in her 30s and has two children to care for for a few more years yet I will only assess a 20% reduction for contingencies. I will allow a 5% contingency reduction against each of the children.

I note from the evidence that there has been some traditional compensation paid namely K1,000 and 15 pigs although the evidence also says that she only got K200 of the cash and all the pigs were killed and eaten.

I divide the loss into the loss incurred prior to the trial and then future loss.

Loss to date of judgment being for 3 years and 32 & half weeks at K6 is K1,131 for the plaintiff plus interest at 4% from the date of death to date of judgment being K163.97 totals K1,294.97 and for each child at K5 per week is K942.50 plus interest at 4% being K136.64 totals K1,078.64.

Less Contingencies

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K200.00

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K9,374.95

	Years Dependency	Est. Ec. Loss	Multiplier	Toiv>Total
Plaintiff	19	6	759	4,554
One Alai	3	5	150	750
Aure Alai	8	5	372	1,860
	Total	Past<	Total
Plaintiff	20%	K3,643.20	K1,294.97	4,938.17
One Alai	5%	712.50	1,078.64	1,791.14
Aure Alai	5%	1,767.00	1,078.64	2,845.64
			K9,574.95

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I order the sum of K4,636.78 be paid to theo the Registrar to be invested by him as to K1,791.14 on behalf of One Alai until he attains the age of 18 years which shall be deemed to occur on 20th June 1996 and as to K2,845.64 on behalf of Aure Alai until he attains the age of 18 years which shall be deemed to occur on 20th June 2002.

National Court of Papua New Guinea

Aure v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 1; N1031 (3 February 1992)